Edmund Gugulethu Mzizi v The State

The applicant was convicted of murder and sentenced to 30 years imprisonment on 6 February 2001 for killing Captain Tatisi on 10 December 1998. The deceased and Inspector Lepedi pursued a suspect who fled when approached. During the chase, the suspect stood under a tree and fired a shot that hit and killed the deceased. As the deceased was being lifted into a vehicle, he uttered the words "That's Gugu". The State's case relied on: (1) Sergeant Mogwere's identification of the applicant as the suspect; (2) testimony from the applicant's former girlfriend Ms Cebisa that the applicant reported shooting "Titus" in self-defense and that the applicant was known as "Gugu"; and (3) Inspector Lepedi's evidence. The applicant's application for leave to appeal was refused on 14 March 2003. On 26 January 2007, the applicant applied for special entries under s 317 of the Criminal Procedure Act. The trial judge made one special entry regarding the inadmissibility of the hearsay statement "That's Gugu". The applicant lodged applications in the Supreme Court of Appeal in February 2008 (late), seeking condonation, leave to appeal, further special entries, and permission to lead further evidence.

• Whether good cause was shown for the late filing of applications for leave to appeal and special entries
• Whether the applicant's explanation for the delay was satisfactory
• Whether there were reasonable prospects of success on appeal
• Whether further evidence should be permitted to be led on appeal
• Whether additional special entries should be made on the record regarding alleged trial irregularities
• Whether the admission of the hearsay statement 'That's Gugu' as a dying declaration constituted an irregularity resulting in a failure of justice
• Whether the sentence of 30 years imprisonment was excessively harsh or vitiated by misdirection

1. Condonation is refused. 2. The matter is struck off the roll.

Good cause for condonation in criminal appeals requires both a satisfactory explanation for delay and reasonable prospects of success on the merits. Where there are no prospects of success, condonation will be refused even if the explanation is acceptable, as it would be futile to grant condonation. An irregularity in the admission of evidence will only justify interference with a conviction under s 322 of the Criminal Procedure Act if it results in a failure of justice. Where sufficient admissible evidence remains to support a conviction even after excluding improperly admitted evidence, no failure of justice occurs. Further evidence will only be permitted on appeal in exceptional circumstances where: (a) there is a reasonably sufficient explanation for why it was not led at trial; (b) there is prima facie likelihood of its truth; and (c) it is materially relevant to the outcome. Mere tactical differences with trial counsel do not constitute incompetence sufficient to vitiate proceedings.

The court observed that while s 317 of the Criminal Procedure Act permits special entries unless the application is not bona fide, frivolous, absurd or an abuse of process, an appeal court may also refuse to make a special entry on the basis that the irregularity does not result in a failure of justice. The court noted that the public is entitled to finality in criminal proceedings and therefore leading of further evidence should not be allowed where it will not affect the verdict. The court commented that since the repeal of s 216 of the Criminal Procedure Act, the admission of hearsay evidence is now governed by s 3 of the Law of Evidence Amendment Act 45 of 1988, which lays down specific requirements for admission. The court indicated it was willing to assume (without deciding) that the dying declaration "That's Gugu" was improperly admitted, demonstrating a pragmatic approach to deciding appeals on the narrowest grounds necessary. The judgment noted that all counsel become "wiser after the event" when commenting on allegations of trial counsel incompetence.

This case is significant for reaffirming the principles governing condonation applications in criminal appeals in South African law. It clarifies the two-pronged test for good cause: (1) a satisfactory explanation for delay and (2) reasonable prospects of success. It demonstrates that even with an unsatisfactory explanation, condonation may be granted if strong prospects of success exist, but conversely, condonation will be refused where there are no prospects of success as it would be futile. The case also reiterates the exceptional circumstances required for leading further evidence on appeal, the court's discretion regarding special entries under s 317 of the Criminal Procedure Act, and that irregularities only warrant interference under s 322 if they result in a failure of justice. The judgment reinforces that mere disagreement with trial counsel's tactics does not constitute incompetence sufficient to vitiate proceedings, and that appellate courts have limited power to interfere with sentences absent misdirection or sentences that are disturbingly inappropriate.